Wednesday, December 21, 2011

George Washington University law professor Paul Butler has an important op-ed in The New York Times, Dec. 21, 2011 in defense of Julian P. Heicklen, a retired Penn State professor, who has been an indefatigable marijuana legalization crusader for years. Heicklen distributed information about the jury nullification power to passersby near the court house in New York City. Federal prosecutors are prosecuting him for the felony of jury tampering and insist that the First Amendment has nothing to do with his conduct.

Tuesday, December 20, 2011

Nicholas K. Peart writes in The New York Times about being stopped and frisked by the New York city police five times in the five years since his 18th birthday. He's Black. Sometimes a horrid truth is so simple, so eloquent and so heart-breaking.

I was stopped and frisked by the police in Philadelphia while simply walking down the street a block from my house. It was 1969, I was 19, and I had long hair and beard.

Today, some of my best friends are former cops. I greatly admire cops who are professionals and respect the very hard, challenging work that many of them do in serving the public. But as I look inside in my heart, I see I harbor a deep seated contempt for cops as a stereotype.

Now, I am very safe from cops. My silvery gray hair is neatly barbered, my white face is clean-shaven, my clothes are in good repair, as is my car. I live in a "good neighborhood," and, at my age, I am rarely out late at night. As I say, now, I am safe from cops -- because of my race, my class status, and my age.

But to state what should be obvious: the protection of the U.S. Constitution of "the right of the people to be secure in their persons. . . against unreasonable searches and seizures" (4th Amendment) which are among "the privileges and immunities of citizens of the United States (14th Amendment) not to be abridged by any State law are NOT supposed to kick in only for the old, white, conformist-looking or middle class!

Today, we mark the passing of Vaclav Havel, and honor the courageous man who challenged the Communists in Czechoslovakia; a man sent to prison four times before he became that nation's first modern democratically elected President. Throughout most of my life, during the "Cold War," Americans were keenly aware of the evils of the Communist police states.

As a young man, I imagined that everyone behind the Iron curtain was also keenly aware of and resentful of their police state, and looked forward to replacing it. Who would continue to tolerate the invasion of liberty of an arrogant police arbitrarily seizing people? However, perhaps I was as naive about this? (Perhaps as naive as was Vice President Richard Cheney imagining the turning of the Iraqi people against the regime of Saddam Hussein upon an invasion by American troops.)

My reaction to Nicholas K. Peart's op-ed reveals how much I have inured myself to the constancy of police abuse of their power.

It is a mark of triumph that the American police have so veiled their invasions of our dignity, our privacy and our liberty that the invasions are blurred and come into our focus only rarely, such as with publication of an op-ed such as Nicholas K. Peart's.

Saturday, December 10, 2011

Gary Storck has a strong op-ed published in The Capital Times in Madison, Wisconsin criticizing Wisconsin Senate Majority Leader Scott Fitzgerald for not supporting a medical marijuana bill that includes Post Traumatic Stress Disorder (PTSD) as a condition for which marijuana may be recommended. But he and the governor "adorned" their Christmas tree lighting ceremony with veterans, and the tree is dedicated to veterans.

The office of Maricopa County Sheriff Joe Arpaio is being criticized for failing to investigate reports of sexual assault in Arizona municipalities that it policed in recent years, according to The New York Times. Arpaio prided himself on degrading and humiliating the prisoners held in his custody. He maneuvered to acquire the title, "America's Toughest Sheriff," and used the sobriquet to sell books and attract publicity. His mistreatment of prisoners has brought investigation by the U.S. Department of Justice.

Wednesday, December 07, 2011

Thomas Haynesworth, 46, was the declared innocent by the Virginia Court of Appeals on Dec. 6, 2011, reports the Washington Post. He was released from prison last year after being imprisoned for 27 years having been convicted in three cases of rape and acquitted in a fourth (charges in a fifth case had been dropped), always insisting that he was innocent.

In 2005, former Virginia governor Mark Warner (D) ordered a review of cases in which DNA analysis of biological evidence might clarify the identity of offenders. Evidence in two of Haynesworth's convictions cleared him, and pointed to convicted rapist Leon Davis, who resembled Haynesworth and lived in the same neighborhood. After that, prosecutors agreed to review the other cases and concluded that the victims had wrongly identified Haynesworth.

This is a tremendous achievement by Virginia's system of justice. In many, if not most, jurisdictions, the attitude to correcting wrongful convictions is that expressed by former Virginia Attorney General Mary Sue Terry (D), "Evidence of innocence is irrelevant."

I commend Virginia Attorney General Ken Cuccinelli II (R) for joining Mid-Atlantic Innocence Project in the effort to ask the court to declare Haynesworth innocent.

Sunday, December 04, 2011

The New York Times reports on the top of page 1, Sunday, Dec. 4, 2011, that agents of DEA and other federal agencies have laundered or transported "millions" of dollars in drug proceeds. Agents have "handled shipments of hundreds of thousands of dollars in illegal cash across borders..."

This is not news nor is it shocking. This is basic undercover work of counter-narcotics investigations. In 1986 and 1988, Congress authorized law enforcement agencies to create fake entities and otherwise engage in stings to fight narcotics trafficking and other crime.

The sums mentioned in the New York Times story, compared to the tens of billions in illegal proceeds that the cartels have to transport and launder every year, are quite insignificant. That some drug traffickers may have benefited from this investigative technique is an intrinsic price of this investigative technique.

Perhaps this is news because of the political "scandal" that BATF allowed weapons that were illegally purchased get transported to Mexico in an attempt to gather intelligence to investigate illegal weapons trafficking in "Operation Fast and Furious." Republican Members of Congress have assumed a mantle of indignation about letting "weapons walk" to attack BATF and Attorney General Eric Holder, and by extension, the Obama Administration.

Law enforcement participation in weapons trafficking or money laundering is little different from the long-time practice of counter-narcotics agents participating in drug transactions in which the drugs get through to the streets and to users as part of an investigation. If DEA seized the drugs in every transaction in which an undercover agent or informant were gathering evidence, those investigations would be infinitely more dangerous and ultimately less successful in reaching their high-level targets.

Allowing the criminals to operate, and working with criminals and assisting in their crimes, is an inherent feature of undercover investigations on the axiom that this is key to earning the trust necessary to burrow deeper into a criminal organization to gather evidence need to identify and convict the criminal leadership. This "collaboration with criminals" is also carried out investigating organizations that are fencing stolen goods, investigating illegal gambling, prostitution, pornography or trademark piracy. Such investigations are inherently "tainted" by their collaboration with criminals. They always have an element that the criminals benefit. Evaluating them always involves a process of balancing evils.

Cops routinely tell lies to suspects. Any interrogation involves misrepresentation, withholding information, bluffing, making false promises and almost every other type of deceit. Officers need to know that they must be, and must be in fact, truthful in their internal reporting and whenever they make a statement under oath or in court. Obviously distinguishing when lying is permissible and impermissible is critical. Developing the ability to resist the temptation to lie when convenient or advantageous when impermissible must be taught and reinforced regularly. Officers are, of course, human beings, and when they fail in this, they must be punished. Norm Stamper writes about these challenges in his excellent book, Breaking Rank.

Is such "collaboration with criminals" necessary? I think so. Sophisticated criminals know that they need to minimize their connection to the evidence and the criminal conduct that they direct. The most powerful, most wealthy criminals are the most insulated. The dangers that they present to to public safety and to the functioning of a democracy and free economy are extensive enough and grave enough that these tools are necessary.

What most of us would find disturbing is when such seductive and trust-winning-betraying techniques are employed against minor offenders or when there is no consensus that the conduct is wrongful and should be punished. And certain kinds of trust winning roles should not be used. Should the government deploy women to seduce criminals into love affairs to learn their secrets and to betray them? I think not. Should the government deploy agents to pretend to be attorneys, priests and clergy, physicians or journalists to gather secrets from their enforcement targets? I don't think so. Trust is an essential glue of any community. And the integrity of certain professions is critical to a functioning democracy and a functioning society.

Drug policy reformers are right to be worried about the democracy-endangering activities of undercover police operations. We are justified in being indignant that unjust or unwise laws are enforced with the most extreme techniques. But we also must concede that society must combat the most dangerous criminals, and that undercover techniques are an essential tool that society must authorize and deploy.

UPDATE, Dec. 5, 2011

Section 1352 of the Anti-Drug Abuse Act of 1986 (P.L. 99-570) created a new federal crime of "Laundering of monetary instruments" (18 U.S.C. 1956) and provided that "(e) Violations of this section may be investigated by such components of the Department of Justice as the Attorney General may direct, and by such components of the Department of the Treasury as the Secretary of the Treasury may direct, as appropriate. Such authority of the Secretary of the Treasury shall be exercised in accordance with an agreement which shall be entered into by the Secretary of the Treasury and the Attorney General." (100 Statutes at Large 3207-20).

Section 6465 of the Anti-Drug Abuse Act of 1988 (P.L. 100-690), "Undercover 'sting' operations in money laundering cases," amended 18 U.S.C. 1956 to create in subsection (a) a new crime in new paragraph (3) of conducting or attempting to conduct a financial transaction involving property represented by a law enforcement officer to be the proceeds of specified unlawful activity [which includes all manner of controlled substance offenses], if the conduct was carried out with the appropriate criminal intent.

Having helped Congress write these provisions in 1986 and 1988, I can say confidently that 25 years ago, Congress contemplated that DEA would be engaged in money laundering investigations.

The Washington Post has a huge front-page story analyzing pardons by President George W. Bush from 2001 to early 2009.

The story does not look at commutations of sentence, typically an early release from prison such as the pre-Christmas 2000 releases of Kemba Smith and Dorothy Gaines by President Bill Clinton. Pardons and commutations of sentence (reprieves) are both elements of the broad power granted to the President under Article II, section 2 of the U.S. Constitution.

The Criminal Justice Policy Foundation has been advocating for the President to increase the number of commutations of sentence since 2000 when it created the Coalition for Jubilee Clemency, and provides advice to prisoners and their families on its website.

Pardons almost never shorten the sentence. Typically they are granted to restore rights to vote, possess firearms, serve on juries, or obtain a business or other license. The published guidelines of the Department of Justice on the pardon process provide that petitions for pardons are not considered until at least five years have passed since a person was released from confinement, or if no prison term was imposed, at least five years from the imposition of sentence. No pardon will be considered for a person on probation, parole or supervised release.

The granting of pardons is important to individuals and can relieve ex-offenders of serious burdens. They are important politically, for example, when granted to former President Richard Nixon by President Gerald Ford, or to former White House aide Lewis "Scooter" Libby by President George W. Bush. Large scale pardons have been very important for national healing after wars, such as the pardons of Confederate officials, officers and soldiers after the Civil War, and deserters, war protestors, draft resisters, etc. after wars in the Twentieth Century.

But today, the critical issue in the proper use of this power is to commute sentences. The federal prison population was about 25,000 prisoners for most of the Twentieth Century, but began to grow in the 1980s as the war on drugs expanded under President Reagan, and it exploded after the 1986 Anti-Drug Abuse Act.

Today there are almost 200,000 convicted Federal prisoners, over 100,000 of them serving drug sentences. Most commentators -- especially most Federal judges (as surveyed by the U.S. Sentencing Commission) -- think that these sentences are too harsh, much too harsh.

The President would be serving the interests of justice by commuting the sentences of thousands, if not tens of thousands of sentences. This would save hundreds of millions of dollars in the costs of operating the Federal Bureau of Prisons. Instead the President is asking Congress to fund hundreds of millions of dollars of new prison construction.

It would be interesting to see The Washington Post analyze the use of this power to commute sentences.

Wednesday, November 30, 2011

The governors of Washington and Rhode Island have written to the Obama Administration and submitted a 99-page petition pursuant to the Controlled Substances Act requesting that DEA reschedule marijuana to Schedule II, a classification that would allow it to be prescribed by doctors under strict controls, according to The New York Times. Under Schedule II, marijuana could only be grown, processed and distributed by persons who have obtained "registrations" from DEA, like drug companies and pharmacists. This is slightly different from the approach in H.R. 1983, a bill introduced by U.S. Rep. Barney Frank, that would direct the Administration to reschedule marijuana to a schedule other than Schedules I or II.

This petition by the governors puts significant pressure on DEA and the Obama Administration to begin moving away from its head-in-the-sand approach to medical marijuana. The petition, in calling for Schedule II status, urges the result recommended in September 1988 by the DEA's Administrative Law Judge, Francis Young, as the result of the long litigation and fact-finding initiated by NORML, and assisted by the old Drug Policy Foundation.

The governor's petition will also help undercut the crusade initiated by the four U.S. Attorneys in California to attack all medical marijuana dispensaries. However, if DEA does reschedule marijuana to Schedule II, all the dispensaries in California and other states would continue to be in violation of federal law because they do not have registrations. It is hard to imagine that DEA would modify their regulations to permit the current dispensaries to be registrants.

All registrants have strict inventory control requirements and must keep careful records on where their controlled substances come from and how they are distributed.

Tuesday, November 29, 2011

Two American researchers have concluded that medical marijuana laws are reducing traffic fatalities in this paper. Check out this very interesting, brand new paper by Dr. D. Mark Anderson, Montana State University and Dr. Daniel I. Rees, University of Colorado, Denver.

Wednesday, November 23, 2011

The White House "live" internet feed at 10:30 am EST, Nov. 23, 2011 will feature President Obama pardoning turkeys. (The image is from last year.) To defuse the criticism that he is misusing his power under Article II, section 2 of the U.S. Constitution to pardon turkeys and not any of the 200,000 human beings in federal prison, he pardoned five (that's right, five) persons of old crimes this week, and shortened the sentence of a mother serving 22 years in prison for selling 13 grams of crack cocaine about ten years ago.

Pardon me, but I won't defuse my criticism! Article II, section 1 of the Constitution says that there shall be a President and how the President is elected. Section 2 spells out the powers. The first sentence has the three powers that the framers of the Constitution recognized were most important of the new executive: Commander in Chief of the Army and Navy and military forces; directing the executive departments; and "Power to grant Reprieves and Pardons for Offences against the United States."

The framers of the Constitution saw a critical role for the President in the justice system. Congress writes the laws (Article I). The executive takes care that the laws be faithfully executed, that is crimes are investigated and prosecuted (Article II, section 3). The "trial of all Crimes" shall be conducted by the judicial branch (Article III, section 2). And the President shall correct injustices through the Reprieve and Pardon power.

Sadly, while Obama freely uses his Article II, section 2 power as Commander in Chief (for example, to bomb Pakistan, Libya, or Yemen without explicit authority from Congress), he uses his Article II, section 2 power to correct injustice with a stinginess that is either uncaring or cowardly.

In August 2010, Congress sent Obama the Fair Sentencing Act of 2010 to tweak the mandatory minimum sentences for crack cocaine enacted in the frenzy after Len Bias died from cocaine in the summer of 1986. Congress recognized that the sentences that had been imposed for the previous 25 years were unjustly long. Obama signed the bill. Tens of thousands of people are serving these unjustly long sentences for crack and other drugs.

There are now 200,000 people serving sentences in federal prison, the largest prison system in the free world. Half of them are serving drug sentences. Most of them are serving mandatory minimum sentences that most judges believe are "manifestly unjust." Many of them have already served decades in prison -- very long sentences -- and yet are facing decades, or even a life time, for being small-scale dealers but sentenced to king-pin sentences because of Congress's hasty, numerical blunders in 1986. (I was the counsel to the House Judiciary Committee who processed that legislation. I was at the table and on the floor of the House when these laws were written and passed. I know exactly how badly they were written and how wrong they are!)

In three years in office, Obama has been able to find one person, only one person, in that 100,000 who he thought deserved a shorter sentence. Obama knows about the injustices. He is a former law professor. He cosponsored legislation as a Senator to fix these mandatory minimums. Either he now simply doesn't care to do anything about it, or he is afraid of the potential that someone he might free might commit another crime and it will be turned into a "Willie Horton" moment. To protect his political butt, Obama seems to be perfectly prepared to tolerate injustice on a massive scale. For shame!

Tuesday, November 22, 2011

A University of Michigan survey, released in August 2011, showed a remarkable difference among parents of different racial or ethnic backgrounds about what they think threatens the health of their children.

First, Black and Hispanic parents have much greater fear for their kids than white parents. The percentage of Black and Hispanic parents who fear the 10th ranked danger for their kids is greater than the percentage of white parents who fear the Number One danger threatens their kids. The 4th ranked danger of white parents, Internet safety, is not on the list for Black parents. Similarly, the highly ranked dangers feared by Black parents -- 4. Gun related injuries, 36%, 5. School violence, 35%, 6. Unsafe neighborhoods, 34% -- are not on the top 10 list for white parents.

Drug abuse however tops the list -- 49% for Hispanic parents, 44% for Black parents, and 28% for White parents. How should we interpret these fears when drug use data shows that white kids use drugs at higher rates than black kids? Matthew Davis, M.D., the director of the poll, begins his analysis by talking about increased use of marijuana. Drug policy reformers should consider the implications of this claim for their work. Drug policy reform in the early 1970s, which seemed a shoo-in after the Shafer Commission reports in 1972 and 1973, and the endorsement of marijuana decriminalization by President Jimmy Carter in 1977, vanished in the 1980 election.

According to a recent survey, African American parents now consider youth drug use as the top concern for young people, ranking higher than gun related crimes, school violence, or bullying. We look forward continuing leading the Federal government’s collaborations with the African American community to reducing disparities and ensure that we can prevent drug use before it starts and work together to break the cycle of drug use and crime.

Wednesday, November 16, 2011

Colombia's wildly popular new president, Juan Manuel Santos, told The Observer in the United Kingdom, that regarding global drug policy, "The world needs to discuss new approaches... we are basically still thinking within the same framework as we have done for the last 40 years."

Santos took office in the summer of 2010, winning a very strong mandate to succeed former president Alvaro Uribe.

The comments in this interview, by a sitting president whose national popularity and global prestige is steadily growing, are enormously important to the advance the cause of drug policy reform.

Monday, November 07, 2011

Ethan Nadelmann writes in The New York Times Nov. 7, 2011 about the numerous serious attacks on state medical marijuana programs by agencies of the Obama Administration, contrary to Obama's 2008 campaign finances.

Ethan's well-written op-ed is an indictment of Obama which can be dismissed if Obama soon takes the stand he said he would take in 2008.

Thursday, October 27, 2011

On October 27, Americans for Safe Access filed suit against Attorney General Eric Holder and U.S. Attorney Melinda Haag of the Northern District of California as the representatives of the U.S. Department of Justice accusing it of acting in violation of the 10th Amendment of the U.S. Constitution for threatening California cities that were implementing the California's medical marijuana laws.

The Tenth Amendment provides, "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved the the States respectively, or to the people." Various powers prohibited to the States are set forth in Article I, section 10.

The Tenth Amendment has rarely been the ground for litigation and the Supreme Court has said little about its meaning and scope.

This could be another ground breaking case of constitutional interpretation arising from the conflict between the People of California and the U.S government around the use of marijuana for medical purposes. In the last big case, Raich, the government won, 6 to 3, a restatement of a very broad reach for national government power under the commerce clause.

According to Huffington Post, the spokesperson for the U.S. Attorney for the Eastern District of California, says that the crackdown on California medical marijuana dispensaries was the idea of the four U.S. Attorneys that head the four federal prosecutors offices in California. That is not strange or surprising. But Huffington Post is spinning her comments to say that President Obama (the Obama Administration) was not involved in the decision (Huffington Post headline:"Obama Not Implicated In California Medical Marijuana Crackdown, U.S. Attorney Claims"). They note that the campaign was approved by the Deputy Attorney General, but suggest that since he did not fly to California for the press conference to announce the crackdown, this indicates some "administration" distancing from the decision.

It is clear that the Obama Administration is getting heat for this. It is unlikely that the President was personally asked to approve this initiative. It is likely that his press people knew about the big press conference in Sacramento at which the four U.S. Attorneys were speaking. In a well-run administration, they certainly would have been advised that this was taking place. There is no question that the President should be held responsible for this policy unless there was an effort by Justice Department officials to keep him (meaning his advisers in the White House) out of the decision making loop.

Attorney General Eric Holder should have known about this. He should have known about the memorandum that his Deputy issued earlier this summer that attracted widespread criticism. It is almost inconceivable that he did not know about the memorandum. As the memorandum was being drafted, Holder should have asked what the specific implications of this memorandum would be for enforcement actions, and he probably was advised on that point as well.

Unfortunately for the proper running of the Justice Department, Eric Holder is under significant political attack for Republicans in Congress over the mishandling of the "Fast and Furious" gun trafficking investigation in Arizona, and is being investigated by a Congressional committee. He is necessarily distracted, and he is weakened. Challenging U.S. Attorneys who choose to make enforcement initiatives is not something he will eagerly do.

It is worth noting that Holder demonstrated very poor judgement in failing to protect President Clinton and the interests of justice in January 2000. Then, as Deputy Attorney General (the number two, chief operating officer at Justice), on the last day of the Clinton Administration, as Clinton was issuing pardons and reprieves, Clinton was about to grant one to Marc Rich, a fugitive from justice. Holder was asked and stupidly signed off on that pardon, exposing Clinton to well-deserved condemnation, and betraying justice, both upper and lower case. Holder, if he had been thinking would have said no, "Look, this guy is a fugitive from justice. He fled to avoid a trial. He had good attorneys, he was contesting the charges, he was out on jail, and he ran. Mr. President, how can you give him a pardon?"

Not only the Attorney General, but the Deputy Attorney James Cole, and all four of the U.S. Attorneys in California were nominated by President Obama. They are his appointees, not the appointees of someone else. These nominations are reviewed by his White House personnel office.

Obama might not have personally decided the policy to crack down on dispensaries in California, but those who did so, and are doing so, are carrying out his Administration's policies. His Administration's policies are his policies. He was elected, not they, and he is responsible for how they carry out his mandate. He has the authority to tell them not to do this, to say that this is not what he wants, and they comply or resign.

Thursday, October 20, 2011

In debate on amendment No. 750 in the U.S. Senate today, Oct. 20, 2011, U.S. Senator Kay Bailey Hutchison (R-TX) said “This is the most massive encroachment on states' rights I have ever seen in this body.”

Holy Cow! Outrageous! What was this?

Sen. Jim Webb (D-VA) sponsored a bill to create a 14-member commission to study America's criminal justice system -- a study. He offered the bill as an amendment to the Appropriations bill for the U.S. Department of Justice. The price tag for the commission was $5 million, not terribly high.

The "most massive encroachment on states' rights I have ever seen"? One has to wonder whether Senator Hutchison just had cataract surgery or if she has been in a coma since she came to the Senate in June 1993. She's a lawyer and received a law degree from the University of Texas Law School in 1967.

Senator Tom Coburn, M.D. (R-OK), an obstetrician, called it unconstitutional. “We are absolutely ignoring the Constitution if we do this." “We have no role … to involve ourselves in the criminal court system or the penal system in my state or any other state.”

Yet those leading conservative members of the Senate Judiciary Committee, Senators Lindsay Graham (R-SC), Orrin Hatch (R-UT), also voted FOR the amendment, as well as Olympia Snow (R-ME) and Scott Brown (R-MA). All the other Republicans voted against it, a total of 43 no votes.

The amendment, in the current climate required 60 votes to pass, it only got 57 yes votes. All the Democratic Senators voted for it, plus the two independents.

Friday, October 14, 2011

The Fifth Amendment to the U.S. Constitution provides that "No person shall . . . be deprived of life, liberty, or property, without due process of law. . ." Does this federal raid of a medical marijuana dispensary operating in compliance with the strict controls of the Colorado Medical Marijuana Enforcement Division in which property is taken and persons are seized sound like what you or an ordinary person would think is the "due process of law?"

Tuesday, October 04, 2011

Montana Attorney General Steve Bullock, noting that hunting season is starting soon, sent a strong letter to U.S. Attorney General Eric Holder subtly suggesting how offensive and unworkable was the letter to Federal Firearms Licensees from the ATF declaring state medical marijuana laws null and void as far as the Federal gun laws go.

Monday, October 03, 2011

A provision of the 1968 Gun Control Act prohibits drug addicts from possessing or receiving a firearm (18 U.S.C. 922 (g)(3)). Given the connection between serious drug addiction and criminal behavior such a provision is not unreasonable. Typically however, Congress went a little farther, applying the prohibition to any person "who is an unlawful user. . . of a controlled substance."

Of course, if you have a bona fide prescription for a controlled substance for a medical condition you are not "an unlawful user," and thus it is not a crime to possess or receive a firearm. So even if you use powerful narcotics legally, that does not affect your right to possess a firearm.

As of this time, sixteen states (and the District of Columbia) have enacted laws recognizing the medical use of marijuana.(The laws in D.C. and New Jersey are not yet operative.)

As a result of these state laws, there are hundreds of thousands of persons nationwide whose doctors have recommended to them that they use marijuana for medical purposes.

But Federal law still does not, and Federal health officials still do not, recognize the medical use of marijuana
(except by four persons who receive marijuana from the federal government
under the compassionate use program).

Should being a lawful patient using marijuana under State law require that one give up one's Constitutional right under the Second Amendment to possess a firearm for self-defense? As matter of logic, of course not. Under state law, you are a lawful user of marijuana under a doctor's supervision. You are not a drug addict. But according to the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) of the U.S. Department of Justice, the answer, sadly, is yes!

Once again obtuse Federal health and drug officials, now acting through ATF bureaucrats, are jeopardizing the liberties of Americans by setting aside their right to self defense, clarified by the U.S. Supreme Court in the Heller case in June 2008.

Friday, September 30, 2011

Mark Kleiman, Jonathan Caulkins, and Angela Hawken have published Drugs and Drug Policy: What Everyone Needs to Know (Oxford University Press, 2011). This is a smart and useful book for all audiences. Drug policy reformers will find many points they will agree with and many that may challenge their beliefs and prejudices.

The authors -- all highly respected scholars -- have produced an easy-to-read, authoritative guide to the key issues regarding drug. They aren't trying to make friends, they are trying to tell the truth as evidence or logic leads them. For example, they praise public health advocates who support sterile syringe programs, but note that many advocates of harm reduction don't support tobacco-related harm reduction such as smoke-free cigarettes.

The authors seriously engage some of the taboos often ducked in policy discussions such as a 25-page chapter entitled, "What are the benefits of drug use?" There are numerous smart discussions about factors and myths that surround "drug policy." For example, what is the role of science and evidence in making policy, or the factors in cultural conflict.

Zimmerman's story of his full engagement in the 1960s and 1970s is an outstanding page-turner of a memoir. This brilliant and courageous man was repeatedly in the center of the action of that chaotic time -- working intensely and constructively for civil rights, for peace and for justice. If you want to understand the 1960s, and the kind of men and women who made it the cultural and political watershed that it is, you must indulge in the pleasure of reading this book.

Friday, September 23, 2011

On September 19, the NYPD issued an order forbidding officers from the practice of arresting people for the misdemeanor of public display of marijuana by ordering people to empty their pockets. New York State decriminalized marijuana possession in 1977, limiting the maximum penalty to a $100 fine. But over the past 15 years, the NYPD has tricked or coerced close to a half million people into publicly displaying marijuana, and in order to arrest them, fingerprint them, photograph them, and give them lifetime criminal records. 87 percent of those arrested have been black or Hispanic, a completely disproportionate figure.

In issuing the new order, NYPD Commissioner William Kelley noted that “questions have been raised about the processing of certain marijuana arrests.” Indeed! On June, 23 2011, the Criminal Justice Policy Foundation filed a formal demand with the U.S. Department of Justice asking for a civil and criminal investigation of the NYPD leadership and top New York City officials suggesting that the marijuana arrest program is an unlawful pattern or practice of conduct designed to violate the constitutional rights of the persons being arrested, in felony violation of federal law. Here is the letter to the Assistant Attorney General for Civil Rights, a statement from Professor Harry Levine of Queens College, City University of New York, one of the courageous figures who spotted this problem, containing part of his detailed analysis of the arrest data, and the images of the certified mail receipts for the delivery of the letter to both the Assistant Attorney General and U.S. Attorney General Eric Holder.

The U.S. Senate Committee on Appropriations last week approved its bill to fund Commerce, Justice and Science programs and agencies for FY 2012.

The bill, which comes from a subcommittee chaired by Senator Barbara Mikulski (D-MD), zeroes out funding for the popular Second Chance Act (which is proposed to receive $70 million in the House bill).

Shockingly, the bill added a $350 million increase to the Bureau of Prisons, a portion of which will help them kick off a multi-year prison building campaign that will result in 7 new prisons in 4 years.

Thursday, June 30, 2011

It is the summer of 2011, and Campus Progress is coming to Washington July 6 and 7! Should any one care?

The U.S. is at war in Afghanistan -- the longest war in U.S. history. In our newest "not war," the U.S. is bombing Libya under the flag of NATO (but the President says this is not "hostilities" because there are no American forces on the ground and only few casualties). And the U.S. is sending drones to attack targets in Pakistan, Yemen and the Somalia. Is this conforming to an oath to preserve, protect and defend the Constitution that provides that Congress declares war? (Query: Could Japan have said that there were no hostilities when it bombed Pearl Harbor in 1941 because it had no troops on the ground and only 55 casualties?)

The national rate of unemployment remains at levels comparable to those last seen in the Reagan recession of 1981-82 -- thirty years ago!

American families have lost about $9 trillion in their wealth -- value of their investments such as their home, their pension fund, their savings.

June has been one of the hottest in history. Floods ravage the American heartland. The evidence of global climate change, abetted by human activity, smacks us in the face.

America is the home to one-quarter of all the world's prisoners -- not China, not Russia, not Iran, not Cuba.

America wields its drug policy like a scythe among young people of color -- imprisoning them and imposing life long criminal records by the hundreds of thousands that stop the opportunities of higher education, of lawful employment, of credit, of housing, of advancement, of creating opportunities for family and children, and deny the right to vote!

The Congress is in a state of partisan gridlock. Accomplishing the most basic tasks seems to require a Herculean effort -- to confirm the President's nominees to run government agencies, to adopt a budget, to appropriate the funds for government programs and agencies, to oversee the activities of the government.

Fortunately, what in modern decades has been America's most politically dynamic class -- its progressive students -- are meeting in Washington on July 6 and 7 under the auspices of Campus Progress.

Are the students poised to adopt a resolution, on behalf of America's youth or the families that sent them, that sets forth their demands for economic, political and social reform?

Will these political savvy and aware students present, debate and adopt a manifesto outlining their vision of a vital America: a nation moving toward to a sustainable future, protecting civil liberties and human dignity, and balancing opening opportunities for entrepreneurs with assuring that private and public resources are adequately devoted to care for those who have handicaps, illness, and who are unable to have their needs met by their own hard work and savings?

Here's a link to the agenda of Campus Progress. Does this look like healthy debate or preaching to the choir? Does this look like an opportunity to stand for something or for the off-spring of the affluent to add to their resumes in support of becoming apparatchiks for the professional progressives?

On the conference program there is no congress of students. On the program, there is no opportunity for students to adopt an agenda for action.

Does this look like an occasion for progress? Or does the agenda read like a festival for the passive absorption of the assorted wit, outrage, cant, and self-congratulation by a few bright lights of the progressive left?

Can these students breakout of the straight jacket of the agenda? Can they tap the outrage of our current condition? Or are they lining up to get autographs, distribute resumes, and to out-hustle one another for a job?

On June 30, 2011, the U.S. Sentencing Commission unanimously adopted proposed sentencing guidelines that, effective Nov. 1, 2011, would allow prisoners to petition to modify their sentences. This is good news because some law enforcement groups had opposed this move. This is good news because perhaps 12,000 current federal prisoners may get their very long sentences reduced by an average of three years! This is good news because this is one of the biggest steps that the Sentencing Commission could take.

But, sadly, this step is only a small step in the longer journey for justice. First of all, this change will have no effect on the statutory mandatory minimums. Those who are serving a 10 year sentence because they were convicted of distributing, or conspiring to distribute 50+ grams of crack cocaine, will still have to serve the 10 years. Even though the new mandatory minimum sentence starts at 280 grams, because Congress did not make the Fair Sentencing Act of 2010 retroactive, the statutory minimum sentence in effect at the time of the defendant's crime is not going to change. Congress may have recognized that sentences of 10 years for less than 280 grams were unjust, by contemporary standards, by changing the law but they did nothing about those cases already decided over the previous 24 years.

But the second, and bigger, point is that the enormous focus on the sentencing of crack cocaine cases has been tragically misplaced, because it has focused on the wrong "end" of the justice system. The heart of the problem is that U.S. Attorney offices around the country bring small-scale cocaine cases in federal courts where they can get extraordinarily harsh sentences because of the small quantity triggers (now 28 grams and 280 grams for minimum sentences of 5 and 10-years). A boatload of cocaine seized by the Coast Guard might contain one ton, that is, 1,000,000 grams! The team that organized that shipment is a large scale dealer and they belong in federal court. Small cases do not belong in federal court.

The thousands of small cases brought every year mean that DEA agents and other federal investigators and prosecutors are not working on major cases. Sadly, it seems everybody in Justice and Congress is satisfied with the handful of agents bringing a handful of major cases in a year.

Major cases are vitally important because the people involved are often involved in assassinations of police and political leaders, wholesale bribery and corruption, extensive money laundering, fabulous tax evasion and so forth. But federal agents are unavailable to do those cases when they are busy with thousands of neighborhood crack dealers (and their girl friends) -- dealers who are easily, quickly, and usually replaced soon after their arrests.

People concerned about the "injustice" of the excessively long "crack" sentences should focus their outrage on the U.S. Justice Department which tolerates wasting expensive federal anti-crime resources on unimportant criminals, not be outraged at the federal judges or the sentencing guidelines that have nothing to do with case selection.

Many fewer that one in a hundred American "criminals" go to federal court. The offenders who go to federal court should be those who commit terribly serious crimes. The federal cases should be those involving very complex schemes that require the smartest attorneys and investigators to unravel, and those that have nationwide or international implications.

A guy selling crack cocaine out of a local crack house does not belong in federal court. The crack was probably made in the back room of the crack house or a few blocks away. Local cases belong in local courts. Even the guy who is the biggest crack dealer in the city typically does not belong in federal court. If the Justice Department succeeded in shutting down the operators of the international cocaine pipeline that has been keeping every crack house in America fully supplied then it might be appropriate for it to work on totally local cases.

I commend the U.S. Sentencing Commission for having the courage to make the changes that it can in the face of continued political grandstanding about "crack dealers." Today, a lot of minor criminals selected almost at random by the Justice Department and now serving inordinately long sentences will have a shot at getting home to their families a few years sooner. This is not trivial.

But I fear that too many justice advocates and legal commentators will behave as though this is a problem of the justice system that is now largely solved.

In a way, this is kind of the like distinguishing those who are hurt and those who are responsible in the current financial crisis that has been going on for the past three years. American families lost $9 trillion in wealth in the lost value in their homes, pension funds, investments, etc. Tens of millions of Americans lost their jobs and are still out of work. So unable to pay bills, they are getting evicted from apartments and homes, and being foreclosed on. But the leaders and players in the financial industry who were responsible for the decisions that brought about the calamity are getting record bonuses and salaries, and not being brought into court to fight for their life savings.

Why does our political system not demand accountability from the powerful when they misbehave, but harshly punishes the the low-level people when they go bad?

This is a remarkable bill for several reasons. First, the bill would truly and completely decriminalize marijuana under federal law. Unlike state laws that reduce the penalty for possession of marijuana from a criminal offense to a summary offense or violation like a traffic offense, there would be no federal violation for possessing or growing marijuana. For example, it is not a federal offense to drive too fast on a federally-funded highway -- it is only a violation of state law. Under this bill, it becomes solely a matter of state law whether one can possess or grow or sell marijuana.

Second, by removing marijuana from the Controlled Substances Act, one of the major impediments to state medical marijuana laws would be removed! If enacted, there could no longer be any argument that the state medical marijuana law is in "conflict" with federal law. The bill does not address any issues of regulation of marijuana as a "drug" under the Federal Food, Drug, Cosmetic and Device Act.

Third, I can recall no bill introduced in Congress to end federal marijuana prohibition since the enactment of the 1937 Marijuana Tax Act effectively created marijuana prohibition. There may have been such a bill before I came to Washington in 1979, but I don't think so. And there certainly has not been such a bill since 1979 when there were still proposals to reduce the penalties for marijuana possession to a summary offense.

Fourth, the language of section 2 of the bill is fascinating. It is an almost word-for-word re-enactment of a famous bill from 1913, the Webb-Kenyon Act. That law, enacted over the veto of President William Howard Taft, was, curiously, a key political achievement of the "dry" forces in their drive to create alcohol prohibition. The Webb-Kenyon Act brought federal enforcement into support of state alcohol controls by making it a federal offense to bring alcohol into a state in violation of the state law. This was an early entry of federal law enforcement into the interstate commerce arena. President Taft vetoed it because he thought it was unconstitutional!

A question that the 1913 law created was whether states could become "bone-dry," and totally forbid the importation of alcohol to prevent possession and consumption of alcoholic beverages. Was this an interference by the States in "interstate commerce." It was upheld, and federal law enforcement could be enlisted to prosecute the shipment of alcohol into dry states.

In 2011, because of the global traffic in marijuana, this provision assures states that choose not to legalize marijuana, that federal resources will help them carry out their prohibitions regarding the interstate or international transportation of marijuana. The states would not be abandoned to having to fight the global traffic in marijuana by themselves if they want to continue to prohibit marijuana. This section would not authorize a federal prosecution for growing marijuana in a state, even when the state continues to prohibits marijuana.

Marijuana, in sum and substance, would be removed from the Controlled Substances Act!

The bill does not withdraw the U.S. from the United Nations Single Convention on Narcotics of 1961 and the other international treaties that purport to outlaw the non-medical use of Cannabis. But those treaties are not self-executing. The U.N. can't "enforce" violations of the treaties.

At this moment, the legislation has little immediate future. The Republican leadership of the House Committee on Energy and Commerce and the House Committee on the Judiciary to which the bill has been referred is unlikely to take up the bill. A companion bill has not been introduced in the U.S. Senate. The challenge for supporters of the bill is to get additional Members of the House of Representatives to co-sponsor the bill, to get newspaper editorial boards and columnists to endorse the bill, and to get the endorsement of the bill by a variety of organizations -- from police and medical organizations to Chambers of Commerce and Parent Teacher Associations.

The drug war is a waste of time, money, and resources. Worse, though, it ruins lives.

The enduring legacy of the war on drugs will forever be the horrible impact it has had on the people and families who have seen terrible, outsized punishment for minor, non-violent infractions.

That's why I'm going to make a stand. On June 14th, I'm making a speech from the House floor demanding that we bring this counterproductive war to an end. To make my argument, though, I need your help.

I'll read some of the most compelling stories as part of my speech on the House floor. And, of course, I will not reveal any private information like your last name.

It's really important for me to have these stories to share. They can illustrate better than any statistic that this war isn't really a war on drugs. It's a war on the Americans who use drugs.

Drug addiction is a serious problem and, while there can be a criminal component, our lawmakers should address individual drug use as the health problem it is instead of investing billions to incarcerate with no intention to rehabilitate.

So, whether the war on drugs has caused you or a loved one to be put in jail, thrown out of school, or lose a job, please share that experience with me so I can include it in my speech. While it may be too late to undo the pain you've gone through, it's not too late to prevent it from happening to someone else:

In August 1986, I wrote H.R. 5394, and House Report 99-845 (Part 1) to accompany that bill, when I was assistant counsel to the Subcommittee on Crime of the House Judiciary Committee.

H.R. 5394, "the Narcotics Penalties and Enforcement Act of 1986" became sections 1001 through 1105 of "the Anti-Drug Abuse Act of 1986," (P.L. 99-570) in other words, the infamous crack cocaine mandatory minimum sentences.

At the direction of the Subcommittee, in the bill I used the words "cocaine base" for "crack" because crack was a street or slang term not appropriate for use in the statute. Congress understood that "cocaine base" meant "crack." All other forms of cocaine were cocaine, which itself was redefined in section 1867 of the Anti-Drug Abuse Act to be a very encompassing definition found in 21 U.S.C. 812 (c) Schedule II (a)(4) and 21 U.S.C. (b)(1)(A)(ii). We referred specifically to "crack" on page 12 of the House Report.

Yesterday the U.S. Supreme Court came up with a somewhat different answer, in an unanimous opinion by Justice Sotomayor, in the case of DePierre v. U.S., 564 U.S. ___ , (No.09-1533) (2011).

I have lost track of the number of times laws that I have written between 1981 and 1989 dealing with drugs, gun control, pornography and other issues, have been reviewed by the U.S. Supreme Court, but you would think that at some point, someone involved in these cases would ask me what the Congress intended in enacting the statute that I wrote for it.

The “War on Drugs” is 40 years old this month. What have been its successes and failures? How much has it cost? Did it produce a strategy for victory over what President Nixon called “America’s public enemy number one”?

Do the dangers of drugs warrant a war? Have the fears of drugs been exploited for political purposes? Have warnings about drug use been properly presented to the right target populations?

Since 1971, Presidents Nixon, Ford, Carter, Reagan, G.H.W. Bush, Clinton, G.W. Bush and Obama, and the Congress have initiated a variety of strategies, most under the label, the “war on drugs.”They have had White House coordinators. Is our anti-drug effort being managed any better now than when President Nixon decried bureaucratic red-tape and jurisdictional disputes among agencies?

Have Nixon’s goals to reduce the number of deaths from drugs and to expand drug treatment been accomplished? Have Nixon’s goals to make the “traffic in narcotics…no longer profitable” and to “destroy the market for drugs” been achieved? Does this strategy make drugs less or more profitable?

In your community, what has been the legacy of 40 years of the “war on drugs?”Who has benefited from this program and who has been hurt? How much does it cost your community to carry on this fight? Is it money well spent?

Have the burdens of drug addiction or drug enforcement fallen harder on people of color or the poor? In your area, if some areas suffer more than others, what explains those differences?

What is the prognosis for mitigating or solving the problems created by the “war on drugs?”

On June 17, 1971, President Nixon sent a 5300-word message to Congress “to consolidate at the highest level a full-scale attack on the problem of drug abuse in America.” He warned, “If we cannot destroy the drug menace in America, then it will surely in time destroy us.”

He created a Special Action Office on Drug Abuse Prevention (SAODAP) in the White House, authorized for three years with the option of extending its life for an additional two years.

This new coordinating office (we use the short hand, “czar,” for such efforts now) would eliminate “bureaucratic red tape, and jurisdictional disputes among agencies” in order to “mount a wholly coordinated national attack on a national problem.”

While Nixon used language such as “I will ask for additional funds to increase our enforcement efforts to further tighten the noose around the necks of drug peddlers,” he also spoke of drug users as “the people whom society is attempting to reach and help.” He wanted the SAODAP to “extend its efforts into research, prevention, training, education, treatment, rehabilitation…”

Costs

Nixon asked for an additional $159 million dollars for his initiatives, plus an unspecified amount to pay 325 additional positions in the Bureau of Narcotics and Dangerous Drugs (forerunner to the DEA).

Over the past 40 years, with leadership from successive presidents and “drug czars,” and enthusiastic support from Congress, the Federal government has spent, cumulatively, about a half trillion dollars on the “war on drugs.”By FY 1975, federal anti-drug spending had climbed to $680 million. For the past 20 years, Federal spending on drugs has exceeded $15 billion per year including the costs of imprisonment.

The costs are now so high, the “drug czar” seems to conceal almost one-third of the anti-drug spending by excluding it from the formal anti-drug budget. ONDCP says that $14.8 billion was spent in FY 2009 to fight drugs. But another $6.9 billion was actually spent in FY 2009 on fundamental anti-drug activity such as the incarceration of federal drug prisoners.

The FY 2011 formal anti-drug budget request is for $15.5 billion, excluding imprisonment and the other costs which remain concealed in the budget submission.

Nixon wanted research and “development of necessary reports, statistics, and social indicators for use by all public and private groups.” Do we have sufficient knowledge of the drug problem?

Do we know what it has cost the economy that tens of millions have criminal records, and earn so little that they are unmarriageable and can’t obtain credit? What has it meant, for example, to American automakers and unions that instead of the 200,000 prisoners in state and federal prisons in 1972, there are about 1.6 million adults in prison now (and another 600,000 in jails)?

Nixon did not say how many drug addicts there were. But he said his initiative “must be judged by the number of human beings who are brought out of the hell of addiction, and by the number of human beings who are dissuaded from entering that hell.” He did not say how many non-addicted drug users there were but he said these steps would “strengthen our efforts to root out the cancerous growth of narcotics addiction in America.” The reality that the majority of drug users were not destined to become addicts was not understood or was disregarded.

Nixon asked for $14 million “to make the facilities of the Veterans Administration available to all former servicemen in need of drug rehabilitation.” Are we anywhere near meeting the needs of Veterans with substance abuse disorders today?

International initiatives

A major feature of Nixon’s message stressed the need for international cooperation. He imagined that it was realistic to propose an “end opium production and the growing of poppies” as an international goal. He noted the strong U.S. backing of the “United Nations effort against the world drug problem.”

Has the “balloon effect” has rendered successes, such as the elimination of Turkey as a source of illicit opium and France as a center of heroin production for U.S. consumption, into disasters for emerging producing states? Was the bloodshed in Mexico, and increasingly in Central America, predictable?

Does the international control regime continue to make sense? Are nations in Europe and Latin America slowly abandoning the principles of the U.N. narcotics treaties in favor of harm reduction, recognition of individual liberty, and regulated distribution and use?

Conclusion

State legislatures continue to pass medical marijuana laws. In November 2010, in California, 46.5 percent of the voters supported legalizing marijuana, and polls revealed that 30 percent of “no” voters said they supported legalization, but not in the form of Proposition 19 that was on the ballot.

Public support for this important and expensive public policy is in flux. Many states are recognizing that the costs of punishment and imprisonment are now excessive.

This 40th anniversary is an opportunity for America’s journalistic leaders to examine and comment on a serious public health problem that still suffers from the stigma once associated with leprosy, tuberculosis or AIDS.

Please contact me if you are interested in writing on this. I can also refer you to additional sources. Eric E. Sterling, cell 301-589-6020, esterling@cjpf.org